The army must internalize the gravity of the Ni’lin shooting incident

Published:

27 Jan 2011

Today, the special military court sentenced Lt. Col. Omri Borberg and Staff Sergeant Leonardo Corea, who were convicted in the case of the shooting at a Palestinian detainee in the West Bank village of Ni'lin exposed by B'Tselem in 2008. The judges sentenced Borberg, who was convicted of attempted threats and conduct unbecoming an officer, to a suspended jail sentence and determined that he will not be demoted. The court also recommended that he not be promoted for two years, and ruled that he will be forbidden from serving as a commander for one year. Corea was sentenced to demotion from the rank of staff sergeant to the rank of private.

B'Tselem responded to the sentencing by saying it hopes that the military will internalize the court's ruling that the Ni'lin shooting was a grave and disgraceful event. At the same time, B'Tselem noted the gap between the court's condemnation of the act and the lenient sentence it issued. B'Tselem reiterated that far more severe cases of harm to Palestinians by the Israeli security forces have been exposed in recent years, yet the military justice system chose to ignore them. This policy of impunity, employed by the Military Advocate General's office for many years, has created the climate that enabled the Ni'lin shooting, as well as many other cases, to take place. B'Tselem further noted that the court rejected the claim that the video footage of the event had been falsified. The organization emphasized that if Israel's image was harmed, as some have claimed, it is due to the grave acts captured on film, and not to the publication of the film.

Background

Exposure of the incident

On 20 July 2008, B'Tselem published video footage the organization had received of a soldier firing a rubber-coated steel bullet, from extremely short range, at a handcuffed and blindfolded Palestinian detainee. In the footage, the soldier is seen firing the shot while his battalion commander holds the detainee's arm. Several members of the security forces were present at the scene.

The incident took place on 7 July 2008 in the West Bank village of Ni'lin. A Palestinian demonstrator, Ashraf Abu-Rahma, 27, was detained by soldiers, who held him handcuffed and blindfolded for about thirty minutes and beat him, according to Abu Rahma's testimony. Afterwards, a group of soldiers and border policemen led him to an army jeep. At that point, the footage shows a soldier aim his rifle at Abu Rahma's legs from about a meter and a half away and fire a rubber-coated steel bullet. Abu Rahma was injured in his left toe. He stated that he received treatment from an army medic and was then released by the soldiers.

A young girl from the village filmed the incident from a window in her house, and a copy of the tape was transferred to B'Tselem. The organization immediately sent a copy to the Military Police Investigation Unit, demanding that an investigation be opened immediately and that the soldier be brought to justice. B'Tselem also demanded an investigation into the involvement of the battalion commander, who was holding the detainee when the soldier under his command fired. B'Tselem stressed that members of the security forces are obligated to report unlawful acts and that a senior officer's failure to do so is particularly grave.

The Judge Advocate General's Office (JAG)

It was only after the footage was broadcast on a national news channel that the Military Police opened an investigation and arrested Staff Sergeant Leonardo Corea, who fired the shot. Until then, the army chose not to conduct a Military Police investigation and settled for an operational debriefing. The findings of the debriefing were sent to the desk of the Judea and Samaria (West Bank) Division Commander, who failed both to inform the Military Police or the JAG's Office, and to take any measures against the soldier or the battalion commander, Lt. Col. Omri Borberg.

During the investigation, Borberg and Corea presented contradictory versions of the incident. Corea claimed that his commander had ordered him to shoot Abu Rahma, while the latter claimed that his order had been only to “frighten” the detainee.

When the investigation was concluded, the JAG's office decided to charge the two with “unbecoming conduct”.

Petition to Israel's High Court of Justice

On 19 August 2008, Ashraf Abu Rahma, together with the Israeli human rights organizations B'Tselem, the Association for Civil Rights in Israel, the Public Committee Against Torture in Israel, and Yesh Din, appealed to the High Court of Justice against the Judge Advocate General's decision. The petitioners claimed that the charge did not reflect the severity of the offense – ostensibly threats to intentionally harm a person, mental abuse, and use of a weapon against a handcuffed, helpless person who is under the custody of the offenders.

As a result of the petition, the High Court ordered the JAG's office to reconsider the charge pressed against Borberg and Corea, and to notify the court of its decision within forty days.

On 4 November 2008, Judge Advocate General Brig. Gen. Avichai Mandelblit, informed the High Court that he had decided to not to change the indictment.

On 1 July 2009, the High Court ruled that “the military prosecution's decision to charge the battalion commander and the soldier with unbecoming conduct will be cancelled, as it is extremely unreasonable.” The court order the JAG to change the charges “so that the offenses each of them is charged with will adequately reflect the facts and the nature of the acts described in the indictment.” Following the ruling, the indictment was changed: Lt. Col. Borberg was charged with threats and conduct unbecoming an officer, and Staff Sergeant Corea was charged with unlawful use of a weapon and unbecoming conduct.

The trial

On 15 July 2010, the special military court convicted Lt. Col. Borberg, former commander of armored battalion 71, of attempted threats and Staff Sergeant Corea of unlawful use of firearms. Both were also convicted of conduct unbecoming. These offenses carry a maximum sentence of three years' imprisonment and a criminal record.

In the judgment, the panel of three judges wrote that Borberg intended to make Ashraf Abu Rahma, the bound detainee, think that a soldier was going to shoot him. ”The accused even led his subordinate astray by causing him to shoot towards the blindfolded, bound detainee.” The judges emphasized that combat is not an excuse that can justify criminal acts. “The battalion commander's actions did not take place during a demonstration but rather in an area under complete Israeli control, and the threat of shooting was not made in the course of combat or police action. […] It constitutes a serious deviation from fundamental values and a significant erosion of the image of the IDF, of its commanders and of its soldiers."

During the arguments in court on the penalty to be imposed, Lt. Col. Borberg's counsel contended that the video tape documenting the incident had been tampered with. Following this claim, B'Tselem helped to mediate between the military prosecution and the family, and the family provided the original tape to the Military Police Investigation Unit. It was then handed over to the Forensics Department of the Israel Police.

The examination by the Forensics Department determined that all the segments of the tape were genuine. The department did not find any sign of editing, photo processing, or intervention of any kind. These findings were presented in the opinion of Superintendent Alan Tchaikovsky, head of the digital evidence division in the Forensics Department, submitted to the military court on 6 January 2011.

As stated above, on 27 Jan. 2011, the special military court sentenced Lt. Col. Borberg to a suspended jail sentence and determined that he will not be demoted. The court also recommended that he not be promoted for two years, and ruled that he will be forbidden from serving as a commander for one year. Corea was sentenced to demotion from the rank of staff sergeant to the rank of private.